16 Years On, Gujarat High Court Quashes Compulsory Retirement Of Judicial Officer Citing Review Committee's Likely Bias

The Gujarat High Court set aside compulsory retirement of a judicial officer made 16 years ago, noting that the adverse remark regarding the officer's doubtful integrity was not based on tangible material and there was also a likelihood of bias in the mind of committee which took the decision. 

The petitioner contended that a division bench of the high court had made castigating remarks about his working as the Presiding officer of the Motor Accident Claims Tribunal. One of the two judges was later a part of the committee, which recommended has compulsory retirement.

Petitioner argued that the said Judge should have recused himself from the Committee meeting.

Agreeing, division bench of Chief Justice Sunita Agarwal and Justice DN Ray said,

"...it is difficult for us to ignore that one learned Judge having expressed his mind in his judicial order dated 17.07.2006 about the judicial working of the petitioner, could have been part of the Review Committee...the circumstances clearly reflect that there was reasonable likelihood of bias sufficient to create in the mind of a reasonable man an impression that the decision of the Full Court was influenced."

The court said that while the division bench's judicial order of 17.07.2006 may not fall within the category of an extraneous material, but it had an effect to influence the minds of the Judges forming part of the Full Court.

The court further noted that the secret notes about the integrity of the officer in the ACR are missing in the original records and the only entries made in the column of integrity could not have been formed the basis to record that the integrity of the officer was doubtful. 

On the issue of doubtful conduct of the officer the court said:

"Mere possibility or rumour mongering would hardly be sufficient to assume the doubtful conduct or reputation of the judicial officer. Any error of law in rendering a decision on the judicial side, however gross it may be, should not be attributed to improper motives so as to make a remark about the doubtful integrity or improper functioning of the judicial officer...We are of the view that the adverse remark entered by the reporting officer regarding the petitioner having doubtful integrity should have been based on some tangible material in the form of a secret note, which would have conveyed his mind in forming his initial opinion with regard to the integrity and overall reputation enjoyed by the petitioner".

The court said that it may be a different situation if the service record of the petitioner itself spoke of his judicial functioning or on overall consideration of the service record, the assessment of overall performance of the petitioner would have been the reason to retire him compulsorily.

"we reach at an irresistible conclusion that the whole exercise of evaluation of the material, viz. service record of the petitioner by the Review Committee had not resulted into a bona fide decision taken in the public interest...The decision making process is tainted on the premise of reasonable likelihood of bias and results into the decision being held as mala fide, not taken in the public interest. With the above, the order of compulsory retirement cannot but be said to be an order of punishment, which though innocuously worded but implies a stigma and suggestions of misconduct," it said

The court held that the petitioner was entitled to arrears of his salary as well as retiral benefits.  It thus allowed the petition and set aside the compulsory retirement of the petition. 

The petitioner was appointed as Civil Judge, Junior Division in the year 1981 and promoted as Senior Civil Judge in the year 1990. He was subsequently posted as Joint District Judge under the Fast Track Court Scheme at Surendranagar with effect from 02.09.2002

Out of 42 incumbents appointed as Joint District Judges, 18 were regularised in the cadre of District Judge purely on the basis of seniority. However, the petitioner was left out. He made a representation on 19.07.2008 and received the response on 02.09.2008 to the effect that his result had been kept under sealed cover in view of the departmental inquiry initiated against him. The charge memo of the departmental inquiry was issued on 23.12.2008 and the petitioner was asked to submit his Statement of Defence. The copies of the documents mentioned in the "List of Documents" were not supplied to him and the time for furnishing Statement of Defence was extended uptill 24.08.2009.

But before he could submit his Defence, he was compulsorily retired on 20.05.2009, pursuant to a 19.05.2009 notification issued by the state government. 

Case title: M S SHAIKH v/s  HIGH COURT OF GUJARAT & ANR.

R/SCA 14654 of 2008 and SCA 3875 of 2010

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